The appellant, Mst. Bibi Husan Bano has called in question the judgment dated 10-3-1987 passed by the learned I-Senior Civil Judge and Rent Controller, Nawabshah whereby the Rent Application No,19 of 1985 filed by respondent Fazal Hussain against the appellant was allowed and the eviction of the appellant was ordered.
2. The facts, relevant for the purpose of this appeal, are that on 22-7-1985 respondent Fazal Hussain filed a rent application against Mst. Bibi Husan Bano under section 15 of the Sindh Rented Premises Ordinance, 1979 stating therein that the residential premises built on city survey Nos.A/1031, 1032, 1033 and 1034 situated at Gharibabad, Nawabshah was previously owned by Faiz Muhammad who had let out a portion thereof built on City Survey No,A/1034 to the appellant, another portion on City Survey No,A/1033 to one Lal Baldish and the third portion, on City Survey Nos.1031 and 1032 to the respondent. During the subsistence of tenancy the owner namely, Faiz Muhammad sold the entire premises to the respondent through a registered sale-deed dated 28-1-1978 whereupon he became the absolute owner of the premises. He informed the appellant about the change of ownership in respect of the premises in her occupation and subsequently filed F.C. Suit No,19 of 1979 against the appellant in the Court of I-Senior Civil Judge, Nawabshah for possession and mesne profits wherein the appellant filed her written statement admitting that she was tenant in respect of the disputed premises by operation of law. In this view of the matter, the respondent withdrew the said civil suit. The respondent required the premises in question for his personal bona fide use and occupation, as his family comprised six sons and three daughters besides his wife, while the accommodation in his possession was inadequate for his entire family. He also averred in the application that in Second Class Suit No,46 of 1978 filed by the appellant for specific performance and injunction she had denied the title of the respondent in respect of the premises in question and set up her adverse title against the respondent, therefore, his conduct being contumacious and inconsistent with her claim to be a tenant disentitled her from occupation of the disputed premises as a tenant. In these circumstances the respondent, by notice dated 8-6-1995, once against informed the appellant about the change of ownership of the premises in question and called upon her to pay all the rent dues within 30 days of the receipt of said notice and also to vacate the premises but she refused to do so whereafter he filed the ejectment proceedings. The appellant contested the proceedings and filed a written statement wherein she took the plea that she was tenant in respect of the premises situated on City Survey Nos.1033 and 1034, both and denied that the house on City Survey No,1033 was on rent with one Lal Bakhsh. She clarified that, in fact, premises on City Survey No,1032 was in possession of said Lal Bakhsh. However, as regards the relationship of landlord and tenant, she took the plea that she is not tenant of the respondent but she is bona fide transferee 'for valuable consideration in good faith under written agreement of sale dated 1-9-1977 executed in her favour by the owner Faiz Muhammad, on the basis of which she has filed suit for specific performance and injunction against respondent and the owner Faiz Muhammad. She denied that the respondent became absolute owner of the entire premises by virtue of registered sale-deed dated 28-1-1978 as the original owner had sold City Survey Nos.A/1033 and A/1034 to her and possession was transferred to her under the aforesaid agreement of sale and, therefore, her possession is protected under section 53-A of the Transfer of Property Act. She added that in the agreement for sale there was a clerical error as such figures 1032 and 1031 were written instead of 1033 and 1034, otherwise details of construction and boundaries were correctly incorporated therein. She admitted the fact of Suit No,19 of 1979 filed by the respondent and its withdrawal but she clarified that in the written statement filed by her in the said suit she had pleaded that she was tenant by operation of law but the plea was taken without prejudice to her case, that she was bona fide transferee for valuable consideration under agreement of sale dated 1-9-1977.
3. On these pleadings the learned Rent Controller settled the following issues for determination:-- (1)- Whether defendant No,1 executed sale agreement, in respect of suit land in plaintiff's favour and received amount of Rs,4,000 as part of price?
( ) Whether plaintiff was put in possession of suit land in pursuance of sale agreement?
(3) Whether plaintiff is in possession of suit land?
(4) Whether agreement dated 1-9-1977 is forged one?
(5) What is effect of F.C. Suit No,19 of 1979 filed by defendant No,2?
(6) Whether plaintiff is entitled to the relief claimed?
(7) What should the decree be?
4. The respondent filed his affidavit-in-evidence Supported by a number of documents. He also field the affidavit-in-evidence of witness Faiz Muhammad. On behalf of the appellant her attorney Muhammad Baldish filed his affidavit alongwith some documents. All these witnesses were subjected to cross-examination. On assessment of the evidence, the learned Rent Controller held that the appellant is not entitled to protection of possession under section 53-A of the Transfer of Property Act and that the appellant is'tenant of respondent and she is defaulter in payment of rent, and the premises is required by the respondent for his personal bona fide use as such she is liable to be evicted. He allowed the application and ordered ejectment of the appellant.
5. Main contest between the parties centered around the controversy relating to relationship of landlord and tenant between them. Admittedly, the respondent has purchased the entire property comprising City Survey Nos.A-1031, 1032,1033 and 1034, Gharibaba.d, Nawabshah from the original owner Faiz Muhammad under a registered sale-deed dated 22-1-1978. This includes the premises on City Survey No,A-1034 in possession of appellant in respect of which the eviction proceedings have been instituted. It is the case of appellant that before the aforesaid sale she, through her attorney, purchased the disputed premises by way of a sale agreement executed by the original owner Faiz Muhammad on 1-9-1977 for Rs,7,000 out of which she paid Rs,4,000 to the vendor and she was put in possession of the premises in pursuance of the agreement, as such she becomes bona fide transferee for valuable consideration. In this regard, it was pleaded on her behalf that her possession is protected by section 53-A of the Transfer of Property Act. The learned Rent Controller has fully adverted to this issue and after discussing the case law and in the light of evidence placed by the parties on record, he has come to the conclusion that the appellant is not entitled to the protection of her possession over the disputed premises under section 53-A of the Transfer of Property Act.
6. Learned counsel for the appellant relied on Suit No,46 of 1978 filed for specific performance of contract against the respondent Fazal Hussain and original owner Faiz Muhammad, on the strength of aforesaid sale agreement dated 22-1-1978 and he frankly conceded that in result of any decision on the said cause the issue relating to relationship of landlord and tenant will be directly affected. It would not be out of place to mention here that aforesaid Suit No,46 of 1978 was dismissed and an appeal preferred against the judgment and decree was also dismissed whereafter the appellant filed Revision Application bearing No,51 of 1992 in this Court which was also fixed for hearing on the same day and the matter was heard before the instant F.R.A. Was argued. By a separate judgment the revision application has now been dismissed by me. As a result, of the aforementioned decision in the Revision No,51 of 1992 proceedings the appellant is not entitled to set up a claim of bona fide purchaser for valuable consideration.
7. Moreover, the learned Rent Controller has taken into consideration the admission made by the appellant, in her written statement filed in Suit No,19 of 1979, that she automatically, by operation of law, would continue to be tenant of the applicant. This admission, in my humble view, would no' by itself be sufficient to give support to the case of respondent for the reason that the learned Rent Controller has held, while deciding issue No,3 that the written statement filed by the appellant is not verified by authorized agent under proper power of attorney and the same cannot be admitted.
However, as regards the legal point with respect to protection of appellants' possession under section 53-A of the Transfer of Property Act, I would agree with the learned Rent Controller that the appellant has no case-law as such. In this regard the case law cited by learned counsel for the respondent fully supports his plea. In the case Muhammad Rafiq v. Messrs Habib Bank Limited 1994 SCMR 1012 which has direct bearing on the point in question, the following observations were made by the Hon'ble Supreme Court:-- "We may point out that this Court has declined to allow tenants to plead section 53-A of the Act even in case, in which the landlords entered into agreement to sell the tenements to the tenants in absence of a clause in the sale agreement to the effect that the relationship of the landlord and tenant ceased to exist and that the possession of the tenant was of that of a purchaser after execution of the sale agreement. In this regard reference may be made to the following judgments of this Court:-
(1) Shamim Akhtar v. Muhammad Rasheed PLD 1989 SC 575;
(2) Mst. Azeem-un-Nisa Begum v. All Muhammad PLD 1990 SC 382;
(3) Iqbal and others v. Mst. Rabia Bibi and another PLD 1991 SC 242; On the parity of the above reasoning, we are also unable to agree with Mr. Akhtar's contention that a statutory tenant can invoke section 27-A of the Specific Relief Act."
8. Applying the above principle to the circumstances of the instant case it may be concluded that the respondent is wholly justified in his claim that the appellant be not allowed protection of possession under the aforesaid provision of law.
9. It was further contended that due notice within the meaning of section 18 of the Sindh Rented Premises Ordinance, 1979 was not served on the appellant. It has specifically been pleaded by the respondent that a legal notice was issued by the respondent to the appellant apprising her about the change of ownership and calling upon her to pay rent, but she has denied this fact. However, in order to prove the factum of legal notice respondent produced a copy of the said:notice signed by Syed Suroor Ahmed Zaidi, Advocate as Exh.33. Postal receipts were also produced as Exhs.34 and
35. Nothing could come on record that the postal receipts were forged documents. This piece of evidence was sufficient to prove the factum of notice but the learned counsel for the respondent, referring to relevant case-law on the point, submitted that even after service of notice of the ejectment application alongwith copy of such application, the requirements of notice under section 18 of Sindh Rented Premises Ordinance, 1979 stood complied with and the appellant was obliged legally to pay rent failing which she was defaulter. He placed reliance on Pakistan National Shipping Corporation v. Messrs Central Service Corporation 1992 SCMR 871; Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24; Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751 and Salamat Jan v. Chotey Khan 1987 MLD 2971.
10. It was held in the case of Pakistan National Shipping Corporation as under:-- "4. A wider interpretation has been given to provision of section 13-A which is similar to section 18 of the Sindh Rented Premises Ordinance. Institution of ejectment application and receipt of copy of the said application by which the tenant comes to know about the transfer of the disputed premises, has been constituted as amounting to due notice and treated as substantial compliance with the provisions of section 13-A reference can be made to Maj. (Retd.) Muhammad Yousaf v. Mehrajuddin 1986 SCMR 751... ... ..."
11. In Syed Mazhar Imam Rizvi's case the Hon'ble Supreme Court held that the receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13-A of the Ordinance. The Ordinance mentioned in this case refers to Rent Restriction Ordinance, 1959 but the principle can safely be applied to the instant case. In 1987 MLD 2971 (supra) the following observations were made by this Court:-- "The respondent purchased the property in dispute from Mst. Khairunnisa and thereafter, he served a notice as required by the provisions of section 18 of the Ordinance. It is an admitted position that the appellant did not comply with the notice. It is also an admitted position that the appellant did not tender the rent within 30 days as required by the provisions of section 18 of the Ordinance. In view of this legal position, it seems that the learned Controller has decided the issue in accordance with law. No illegality and misappropriation of evidence has been pointed out by the learned counsel for the appellant."
12. In view of the proposition laid down in the cited cases referred to above, coupled with the evidence produced by the respondent vide Exhs.33, 34 and 35 discussed earlier, I am persuaded to hold that the plea that notice was not served on the appellant, is a hopeless attempt to avert legal effect of default in making payment of rent to the bona fide purchaser who, by operation of law, had become landlord of the appellant. The plea, therefore, cannot be sustained in law. Learned counsel for the respondent in this context placed reliance on the case of Tahir Hussain Malik v. Mst.
Najma Rafi (1995 SCMR 1407) and submitted that the appellant is a clear defaulter in payment of rent and is liable to eviction. The relevant portion of the judgment in the cited case reads as under:-- "It is well-settled that the registered sale-deed has always precedence and preference over the prior unregistered agreement to sell. The respondent being successor-in-interest of the original landlord had stepped into the shoes of the previous landlady and after the issuance of notice under section 18 of the Ordinance was entitled to receive the rent from the petitioner and the petitioner/tenant was obliged to pay the rent to her. By not paying the rent to the respondent, the petitioner has rendered himself liable to eviction."
13. The principle enunciated in the above authority directly applies to the instant case. The appellant's sole witness Muhammad Bakhsh has deposed that no rent has been paid to the respondent in view of the plea taken by the appellant that she is bona fide purchaser. Since the respondent has stepped into the shoes of the previous owner and notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was also issued to the applicant, the respondent was- entitled to receive rent from the appellant which she admittedly failed to pay and, therefore, she was liable to ejectment on the ground of default in payment of rent.
14. A technical plea was raised that the respondent, in his rent application, has not mentioned the rate of rent. In this context reference may be made to the evidence of Faiz Muhammad, the previous owner who sold the disputed premises alongwith other properties under registered sale- deed to the respondent. He has stated in his affidavit-in-evidence Exh.37 that he had let out the disputed premises bearing City Survey No,1034 to Mst. Bibi Husan Bano at the rent of Rs,15 per month about 20 years ago. In cross-examination he gave the same reply that the appellant used to pay rent to him at the rate of Rs,15 per month. It is interesting to point out here that neither the rate of rent as stated by Faiz Muhammad nor relationship of landlord and tenant between the appellant and previous owner Faiz Muhammad was controverted at the trial. Assuming that the rate of rent was Rs,15 per month even then it was proved that the appellant committed default in payment of rent, for admittedly she has not paid a single pie to the respondent. Since the facts and circumstances overwhelmingly prove the plea of default in payment of rent on the part of appellant, no exception could be taken to the finding of the learned Rent Controller on this point.
15. The respondent had also taken the ground of personal bona fide need of the premises on the ground that he has a large family of 11 persons viz, six sons and three daughters besides his wife, while the accommodation in their possession is inadequate for the entire family. In his affidavit- inevidence, he stated that his elder son is married and has wife and children and that he has no other property in Nawabshah or any other place to live comfortably. He asserted in specific terms that the accommodation in his possession viz. City Survey Nos.1031 and 1032 is inadequate to meet his requirements and to accommodate such a large family. Nothing could be elicited from him in cross-examination to indicate that the aforesaid assertion of the respondent carried some element of falsehood or exaggeration. Simply a suggestion was put to him that he did not require the premises in good faith for his personal use which he denied with similar parity. The appellant's witness, in his evidence, could only say that the respondent has a house in the society but he did not furnish any particular, such as area and construction of the same. Learned counsel for respondent relying on M/s. F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178) and Jehangir Rustom Kaklia v. State Bank of Pakistan (1992 SCMR 1296) argued that the respondent's assertion stood unshaken, therefore, the appellant is liable to ejectment on the ground of personal bona fide need also. The observations made by the Hon'ble. Supreme Court in F.K. Irani's case are in the following terms:- "The learned counsel for the respondent has referred to Hasan Khan v. Mrs. Munawar Begum PLD 1976 Karachi 832 and Jehangir Rustam Kakalia v. State Bank of Pakistan 1992 SCMR 1296. In the latter case, while approving Hasan Khan and relying on Tauhid Khanum v. Muhammad Shamshad 1980 SCMR 593 it was observed that on the issue of personal need, statement on oath, if consistent with the application and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that it is bona fide. Applying this test, we find that the respondent has been consistent and the evidence produced is not in conflict or inconsistent with the ejectment application. No evidence in rebuttal has been produced to shake the testimony nor in cross-examination the witnesses have shown any infirmity to discredit it."
The above principle wholly justifies the ground of eviction in the circumstances of the present case, the learned Rent Controller was, therefore, absolutely correct in accepting the evidence of respondent who asserted and elucidated his bona fide requirement in clear terms, making out thereby a genuine ground for the purpose of eviction. It may be added that the proposition laid down in F.K. Irani's case has been reaffirmed by the Hon'ble Supreme Court in a case recently reported as United Bank Limited v. Alafia Hussain (1999 SCMR 1796).
16. To sum up, the evidence discussed above in the light of case-law cited by the learned counsel for the respondent, referred to in the foregoing paras., squarely establishes the case of respondent that the appellant is his tenant and has committed default in payment of rent and that the respondent needs the disputed premises for his personal bona fide use and occupation. The findings of learned Rent Controller on, these points are justified and call for no interference. The appeal is without merits and is, hence, dismissed with costs.